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tv   [untitled]    September 23, 2013 7:00pm-7:31pm PDT

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if they are guilty and the sunshine ordinance task force has issued determination that they have violated some ethics provision, it is your responsibility to investigate your co-commissioners, no bones about it miss hayon. >> i was one of those cases referred to another jurisdiction and it did not go to an ethics commission t went to a district attorney.. who did not have any training in ethics. you may remember the two words oliver luby. whose complaint against this body, was outsourced to oakland. and you have done it before. and you should do it again.
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you you have a ethical duty to not attempt to over turn an ordinance passed by the voters. and, that the board of supervisors has amended. and it would be as if this body is trying to usurp the powers of the board of supervisors this is clearly an outrageous recommendation from the staff, that you may not even have a when whiff of when you walked in here and your duty is to introduction a motion and say no dice, mr. st. croix. and we will not vote on 3 b. we are going to throw it out. >> thank you. >> >> do we have a gentleman
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standing in line? >> pris wolf just speaking as a member of the public. i am concerned about this because i think that it creates a slippery slope. first what is the precedent set for non-sunshine violation and what about the ethics violations by a staff member and how do you deal with those? and so you already have some precedent and some process for dealing with that. and at the same token you have a process for dealing with yourselves as commissioners. and when it comes to ethics violations, so why wouldn't you reflect on those things. also, the task, the sunshine ordinance does not provide any ability to specify or cherry pick any one or another public employee or official when it comes to being examined or ruled on such violations. and so i don't think that it is
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appropriate to have staff say just because it would, we don't have a process above us, to just say that they are exempt when no other city employee has that same privilege. and so i think that you should continue ahead with moving it to a different jurisdiction and there are other ethics commissions and they have the ability to do some what of the same kind of scoping as you do and i would urge you to do that. thank you. >> >> yes, thank you. very much. and of course, the staff at the public library and don't accept or give money to the friends of the library. i think that it is wonderful when we find so many elements coming together, let me explain. substantial, means contain any
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substance. subnative means independent or standing alone, and there are all kinds of things which are substantial, which may or may not be subnative and for example, if you are facing a decision, to change your regulations, regarding putting it in print, that you would take up complaints just because even though a complainant dropped it, and then you decide to not make a decision about that, that is substantial decision. and a member of the public, might convince you to take action. and in fact, if you look at the sunshine ordinance, and a decision to act or not act accountser is an action for purposes of public comment. and both of those principals apply here with respect to your
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obligation to be the foundation of ethical and good government for lack of a better word, findings. and, to say that you are conflicted out because you are all have personal relationships, what does that say that about your independent judgment. you are all appointed here from different sources presumably you come here with judgment, that is informed by your independent perspective. and to, exercise that obligation, and to rule on ethical interpretations. and good government interpretations. and just because it implicates somebody that you know, does
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not change because that person you know is on the body with you. your obligation remains the same, which is to give guidance to the city and to the citizens on these ethical principals. and it is the ethical principals that you are interpreting. and you need to find a way to make sure that you are fulfilling that role as i say, this obligation does not go away, and you need to find a way to make sure that you are held by the same standards as anyone else. and thank you very much. >> i brought with me a copy of the sunshine ordinance. i looked in 6734. and i didn't see anything that said at the end of it except the ethics commission, it is
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executive director and it is staff. and i also checked section 6730 c. which empowers the commission to enforce, task force referrals. and i didn't find any exception for the commission, its executive director and its staff. what we have here is a failure to understand the implications of what is going on. the basic premises, or the basis bed rock principles are set in the california constitution, and section 3 btwo and i will read it to you. a statute court rule or other authority, including those in effect on the effective date of this subdivision, shall be broadly con trued if it furthers the people's right of access and narrowly con trued
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if it limits the right of access. a statute court rule or other authority adopted after the effective date of this subdivision, that limits the right of access, shall be adopted with findings, demonstrating the interest, protected by the limitation, and the need for that interest. that is what is in the constitution. and it is governing what you are doing right now. as we speak. so, what you have to do, is construe 6734, and 673 c. and determine whether you can do those exceptions and you also have to look at your power. which you will have through the city charter, section 15102 and if that says that you can further the purposes of the ordinance, by adopting restrictions, on what you can hear against your own staff,
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and executive director and yourself, and then, i am misreading it. and it took me a little while because we only saw this on friday. and to put it together something that makes, i think, the point, that you just cannot adopt this. you need a reason, opinion, and you need the finding and if you don't do that, then you are truly violated the sunshine ordinance and the constitutional right of public access, thank you. >> peter war field, executive director of the library users association. section 67.34 of the sunshine
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ordinance has two sentences, the second of which i think is particularly notable. and i would like to read it. and read, the entire section, 67.34, willful failure shall be official misconduct. and so let me start out over all saying that i agree with the predecessor speakers you should not be cutting yourself out of the scope of your jurisdiction. and section, 67.34, willful failure will be official misconduct and the willful failure of any elected official and the brown act or the public records act will be deemed official misconduct. and complaints, involving allegations of willful violations of this ordinance, the brown act or the public records act by elected officials or department heads of the city and county of san
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francisco, shall be handled by the ethics commission. added by proposition g11299. that is 14 years ago. i will read that last sentence again, complaints involving allegations of willful violations of this ordinance, the brown act by the department heads or elected officials of the city and county of san francisco shall be handled by the ethics commission. now my reading of that is that it is unequivical there are no if, ands or butt and if you know anybody in that position or this position you are not going to do it. and it was suggested to ask whether the commission has read this section. and i hope that you have and i would like to know how you justify cutting a piece of
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jurisdiction out when the law as it is written here appears to be unequivocal. thank you. >> shall, is... (inaudible) >> commissioners, ray hartz, director of san francisco open government. a couple of points, before i get to the main one. on the previous matter which you did not take public comment, the withdraw of the complaint. and as previously speaker has already mentioned many of us did not get any of this information until friday afternoon, i sometimes don't get it until the day of the hearing. and as a result, i may get an opinion see the opinion for the first time of the staff, recommending to you a dismissal which they always do i have never seen anything where they said we recommend that you find a violation not one single time and they also throw in things that there never has been discussed before and i made choose to withdraw my complaint, so that i can later
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resubmit it and then include my rationale as to why that argument makes no sense. i should not be put in a position as a complainant and of having to get a last minute, surprise that i have to spend my time dealing with when i probably spent weeks if not months preparing for the hearing. the good government guide states stalling, we must afford a fair hearing before the parties before then and central to the fair hearing is that the decision makers come to the hearing with an open mind prepared to hear both sides and to decide the case on the merits of the evidence presented and the governing law. and i see this as nothing but an end run by the staff to attempt to exempt themselves from the sunshine ordinance, findings, and against them. and simply saying, well, we don't want to hear the cases against us, and so we will just send it back to the task force
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and let the complainant and let the citizens of san francisco, figure it out themselves. and even though we know the history and you have all mentioned the history, the da won't take it and the attorney general considers it a local matter and will not take it and so you are saying, let's send it to them. and why? because you know that they will not take it. the bottom line is that the task force is a separate body and this body has disrespected it to the ultimate degree by dismissing every single complaint referred to this body. and you know the hearings and the staff does not do an investigation and they simply say that everything that the sunshine ordinance decided or the task force decided was wrong. and this has been the history of this body. and for years, you dismissed them out of hand, by the
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executive director. and then, for two years, you pretended to come up with the instructions, and then, finalized the instructions without any input from the task force and now what you want to do is exempt your own staff, from the sunshine ordinance, altogether. and by simply removing the due process. >> thank you. >> >> good evening, commissioners, i'm dr. derek (inaudible) and good evening mr. st. croix. the proposal to botch the sunshine complaints against them would make sense, if those complaints were very common. and but they are rare. and as far as i know there has only been three in the last 13 years since the sunshine ordinance was passed. and one was in 2004, and when the oakland ethics commission handled a complaint by oliver nuby and kevin (inaudible)
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against the directors (inaudible) and maple (inaudible). and last year, the san jose election's commission had a city attorney, handling the patrick shaw claim against mr. st. croix. and now, we have allegrossman filing a complaint against mr. st. croix. you know that the attorney general rejects all of your sunshine referrals because they are local matters. and but the district attorney has not acted and even has not responded in writing as he supposed to, to your referrals. also, it is much, much harder for a citizen to retain a sunshine competent attorney, than it is for your staff to retain an outside ethics agency. and you also know that the
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board of supervisors and the mayor's office have also ignored the sunshine complaints referred to them. on the other hand, referring sunshine complaints against your staff, to outside agencies, makes sense, for four reasons. number one, such cases are relevant to those agencies and even intriguing to them. and number two, those agencies have a track record of handling these cases diligently. >> you can reduce conflicts of interest, by having a commissioner rather than a staff person or the executive director approach those outside agencies. and you could reduce the imposition by offering reciprocity. so, the objections raised are
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that it is challenging for you, it is an imposition on other agencies, and it creates a conflict of interest, but all of those can be mitigated, thank you. >> any further public comment? >> commissioners? >> in view of the public comment, and so it might be interested to hear from the city attorney, i mean, to me, this is doable in part to the extent that there is a conflict or a commissioner deems he has a conflict, and he could recuse himself from adjudicating the matter. >> absolutely. >> so in the instance where we all have a conflict, it seems that at least theoretically we could all recuse ourselves in which case, the matter could
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not be adjudicated by the ethics commission. >> i think that is right, if you feel okay with that conclusion. >> that would be acceptable. >> okay >> so then to me the question is, as a matter of course, are we always going to be in a motion on to adjudicate against the commissioner and given that we have done it in the sxaft we have not recused ourselves we can do it without recusal. >> so if that is the case, then, maybe we leave it as is. and although, the procedure is clearly imperfect, and i agree with what mr. st. croix has said about the burdens, maybe it is the least objectionable of many bad options.
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>> >> i would agree with that. commissioner hur, i don't think that we are trying to avoid our responsibility in any way, whatsoever. i think that the issue as i have or was concerned about it is the perceived conflict of interest. >> correct. >> and in passing judgment on our own, if you will, whether it is the staff or whether it is other commissioners. but, perhaps, the best solution is to leave it as it is. >> okay. >> okay, so moving on to decision point 4, >> there is month motion is necessary on that. >> okay. >> and the decision 0.4 is more
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a grammatical correction than anything else. >> and changing the title will be the ethics, handling of regulations for violations? >> it was adding. >> is that what you procedure posing just adding the word handling. >> it will read like this. >> for handling violations of the sunshine. >> yeah, i certainly have no objection to that. >> i don't either. >> it seems techically correct. >> it seems grammatically correct. >> where are you inserting the word handling? >> where it is under lined. >> the commission regulations for handling violations of the sunshine ordinance. >> do we need a motion for that? >> yes. >> okay. >> do i have a motion? >> so moved. >> i move that we amend the title to read ethics commission
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regulations for handling violations of the sunshine ordinance. i will second. >> thank you. >> and question, commissioners. >> any comments. >> public comment? >> >> commissioners, ray hartz, director of san francisco open government. and the actions of this chising and the staff constitute a pattern that i have no trouble labeling it a conspiracy. >> for years the commission allowed the staff to deduce materials from the task force with any bs, excuse provided and then the commission spent more than two years pretending to confer with, the task force, and only to completely exclude them when it cames to finalizing these rules. once the regulations were in place, this commission not only found in favor of the city in every single hearing, and
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against the citizens in every single hearing, but found it necessary to actually vote the sunshine task force findings were wrong. >> you did not just say, we don't intend to do anything with this referral. you voted to find that their finding of violation was not correct and that you no found no violation and you did so without any hearing and they at least held the hearing when they found the violation and you just decided to ignore the facts and as i read from the good government guide you are supposed to listen to the facts and make a decision based on it is facts and the law, you don't. you simply say, task force, you got it wrong. talk about adding insult to injury. and the members of the ethics commission have shown themself to be in the pocket of those who appoint them and i would think that they would be embarrassed to show their faces.
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and that quotation i read from the good government guide, i think that any citizen of this city would use common sense and any member of a jury of your peers will use the common sense to say that anybody that 100 percent of the time finds in favor of the city and against, the citizen who brings the complaint, is biased. 100 percent of the time, you never find in favor of the complaint. you have never filed, i would bet you, one complaint before the sunshine task force and realize what the deal it is to go through the hearings and get a find and then for god sakes, to get it enforced. in fact, with this body, you can't get it enforced. so what is the point? >> and well the point is, we can come here and beat you over the head, by the fact that every single time you find against a citizen, you are
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saying that citizens bring specious complaints and complaints that are not valid or worth while and you do so without the hearings and in many cases without actually investigating them and you simply make it up as you go along out of whole cloth and you dismiss, dismiss, dismiss, dismiss and you not only dismiss the cases, you dismiss the citizens of this city. >> mr. hartz. are you before or against adding the word handling? >> i think that it is... >> whether you add it or not. it does not make a... bit of difference because it is not going to change, it is not a subnative change. >> peter war field, the director of the library users association, i oppose, adding the word handling and i have a different word that i propose would be much more realistic. and given the record and the
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direction of the ethics commission. i think that it should say, ethics commission regulations for dismissing violations of the sunshine ordinance. and i think that that would be much more realistic and give the public a better sense for what actually happens at ethics commission hearings. >> he also would like to propose that you put off the change so that the public might the broader public might weigh in and i am tempted to announce a contest that library users association would like to have or hold for the best title for these regulations and i would propose to bring the results and for you to solicit the results and bring them to the
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subsequent hearing. it could be very perfectly clear, commissioner hur, i'm speaking against this. all right? >> i appreciate it. >> >> the rationale that mr. st. croix included on 3 b is that he was concerned about wanting to avoid imposing more or other ethics agencies. and how noble of him. and you know what? it is not his job. and your job is not to worry about imposing work on another agency. your job is to enforce, orders of a determination, that are sent over here for enforcement. so the handling part is... we are not dogs, we are not horses.
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we are people, we don't need to be handled. what you should do, is introduce a motion to change the title of this regulation to the ethic commission's regulation, for enforcement of sunshine ordinance violations. your job is enforcement. and your job is not adjudication, it is not just to simply dismiss the cases at all, i mean, routinely and all 39 of them, xh is mitigated. and crossed out. your job is enforcement and the title of the document needs to reflect what it is that you are supposed to be doing.
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>> given my three minute limitation on my earlier remarks i want to annotate them a bit for the regulations as a whole. and i commented earlier that i couldn't, or i was not provided with any record that indicated that you saw, these proposed regulations before i did. which was on friday. they were incubated for months and as i mentioned you really needed a serious legal, analysis before the so-called one l. it was proposed. and the facts are pretty clear, that this is an attempt to exclude mr. st. croix from the type of lawsuit that i filed
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three years ago, four year ago that cost the city 25,000 dollars. and that may cost the city and as i had to file my lawsuit involving the failure to produce and disclose the public records notwithstanding the orders issued by the task force. and so, you know, it is important that you understand how the sunshine ordinance works. and i think that if you depend on the staff to inform you that you are going to miss quite a bit and even though you have all taken the exam or promised to take it, i'm not sure that it resonates or registered. that the section of the constitution that i read to you, is pretty serious, is if you check a recent case

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